P L D 1968 Lahore 1387 (PLP)

SAJJAD AHMAD, J.‑

This reference to the Full Bench was necessitated by a conflict in judicial decisions of this Court referred to in the reference order dated the 10th of April 1967, on the interpretation of sections 59(b) and 67 of the National and Provincial Assemblies (Elections) Act of 1964 (hereinafter described as the Act) on the point of the effect of the non‑supply of particulars with regard to any or some of the allegations of corrupt or illegal practices made in an election petition on the entire petition as a whole, that is to say, whether in such a situa tion the allegations that do contain particulars as required by section 59 (b) will survive for adjudication by the Election Tribunal or the entire petition is to be dismissed under section 67 of the Act.

2. On this question the legal position has lately been cleared by their Lordships of the Supreme Court in case S. M. Ayub v. Syed Yusaf Ali Shah (P L D 1967 S C 486) wherein it has been held that "various allegations in election petitions do not constitute an integral package such as would lose its integrity by the failure of one of its parts. The relief sought in such cases can be granted on a single transaction covered by clause (c) of sub‑clause (1) of section 72 of the Act and the mere fact that some of the allega tions made in the petition are defective should not stand in the way of adjudication of other allegations properly made and substantiated with full particulars in s petition." The reference on this question has, therefore, to be answered in terms of the pronouncement made by their Lordships as cited above.

3. The second question raised in the reference, namely, the principles on which stay should be granted by the High Court in proceedings pending before the Election Tribunals invites a discussion of these principles, to furnish as guide lines in the decision of each matter according to its own facts and circumstances, as it would be difficult to lay down a hide‑bound rule to be made applicable uniformally to all such matter coming before the Court. This, however, pre‑supposes that the High Court has the jurisdiction to grant stay apart from the question of the propriety to grant it in the exercise of its supervisory jurisdiction. A bar has been pleaded against the exercise of this jurisdiction under Article 171 of the Constitution, which provides for the final determination of disputes in connection with an election by a Tribunal established for that purpose under the law to be made in that behalf, providing further that the validity of an election shall not be called in question except in accordance with such a law. The effect of Article 171 of the Constitution on the supervisory powers of the High Court under Article 98 of the Constitution to interfere with the decisions given by Tribunals in their exclusive jurisdiction in the matters of election disputes has been considered at length by their Lordships of the Supreme Court in the two well‑known cases of Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore and others (P L D 1966 S C 1) and Akbar Ali v. Razi‑ur‑Rahman Khawaja and others (P L D 1966 S C 492). The leading judgment in the first case was delivered by the learned Chief Justice of Pakistan followed by short judgments of the three other learned Judges who adorned the Bench. This judgment has been differently interpreted at the Bar in support of and against the powers of the High Court under Article 98 of the Constitution in assuming supervisory jurisdiction over the decisions of the Election. Tribunals in election disputes, which have been put under their exclusive domain by the Constitution, If we may say so with all respect, any misgiving on the point has been dispelled by the later judgment of the Supreme Court in Akbar Ali's case wherein their Lordships have held that:‑-- "The decision in Mian Jamal Shah's case is accordingly not to the effect that an untenable interpretation of law by the Commission which may amount to excess of jurisdiction or failure to exercise jurisdiction is not susceptible for interference by the High Court." In this case their Lordships rejected the reasoning and the conclusion of the Tribunal that the ballot papers had been cancelled before they were cast as it was not "only a convenient surmise but fully belied by intrinsic evidence". They proceeded to observe further that:‑-- "If an election Authority or Tribunal acts in this fashion (i. e. by making a convenient surmise fully belied by intrinsic evidence whether under the National and Provincial Assemblies Act or the Electoral College Act) the decision in Mian Jamal Shah's case would not be an authority for the view that their decisions are sacrosanct and may not be called in question to the High Court." We may respectfully add that the view as propounded in Akbar All's case coincides neatly with what his Lordship Mr. Justice S. A. Rahman has succinctly stated in his short note in Mian Jamal Shah's case, which may be refreshingly reproduced:‑ "If in a particular case it is found either that an authority functioning under section 53 of the National and Provincial Assemblies Act, 1964, or an Election Tribunal appointed under that Act has either failed to exercise that jurisdiction vested in it or clearly exceeded that jurisdiction or if the order in question is found to be tainted with mala fide, the aggrieved party may be entitled to invoke the "provisions of Article 98 of the Constitution to obtain appropriate relief, of course within the limited scope of the power given by that Article in view of the exclusive jurisdiction of the authorities concerned."

4. The jurisdiction of the High Court being conceded, notwithstanding the narrow compass in which its exercise is permissible, the question that has to be decided for purposes of this reference is whether the High Court can and if so in what circumstances will it suspend the operation of the impugned orders of the Election Tribunals resulting in the stoppage of proceedings before them. The interim orders passed by the Election Tribunals which are brought under challenge in writ jurisdiction, cannot claim a higher immunity than those which may be finally passed in the ultimate decision of the petition. In fact, interim and interlocutory orders would suffer from the handicap of being unchallengeable, unless, to borrow the language of section 115 of the Civil Procedure Code, they result "in a case decided" in the sense of deciding any substantial question of controversy between the parties affecting their rights and producing results of gross injustice or irreparable loss which cannot be remedied except by interference of the High Court at that stage. If an impugned interim order bears that character, an order to restrain its effect may be granted on the considerations that have been judicially recognised for the grant of temporary injunctions, namely, (i) that the party seeking the injunction has a prima facie good case, (ii) that the balance of convenience is in his favour, and (iii) that irreparable injury will be caused to him if the injunction is withheld.

5. The power of the High Court to make interim orders in the exercise of jurisdiction under Article 98 of the Constitution has a constitutional source in sub‑clause (4) (b) of the same Article, which contains certain prerequisites for the making of that order. It states:‑-- "98 (4) Where‑-- (a) application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause (2) of the Article; and (b) the Court has any reason to believe that the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to the public interest. The Court shall not make an interim order unless the prescribed law officer has been given notice of the application and the Court, after the law officer (or any person authorised by him in this behalf) has been given an opportunity of being heard, is satisfied that the making of the interim order would not have the effect referred to in paragraph (b) of this clause." The quick and correct composition of a Legislature for settling down to its work of legislative business without any cloud of uncertainty hanging on the head of any of its members about his competency to sit in the Legislature is undoubtedly a matter of public interest. In setting up Election Tribunals of exclusive jurisdiction to dispose of election petitions arising in connection with the election disputes, the intention of the Legislature is clear that these disputes should be settled as early as possible. Unfortunately, the Election Tribunals are confronted with considerable obstacles in the discharge of their functions with swiftness and speed in the fulfillment of this desirable intention. It is common knowledge that a successful candidate in meeting a challenge to his success through an election petition strives to thwart its progress, and delays its decision, as much as he can, unless he can bring about its early and on some preliminary objections. In our country he has a further handle for the prolongation of the proceedings in the election petition against him supplied by the National Assembly Members Privileges Act and Provincial Assemblies Members Privileges Act, 1964, where under no proceedings against a sitting member of the Assembly can take place before any Court or Tribunal a fortnight before or a fortnight after the sessions of the Assembly concerned. Because of this measure the proceedings before the Election Tribunal remain suspended for considerable intervals. It would be a travesty of justice if the High Court were to add to these causes of delay by making an order staying the proceedings before the Election Tribunals, in any case, unless that step is fully justified after a careful and judicious appraisal of the case before it. Such a step should be taken only when the order under challenge is shown to suffer from lack of jurisdiction or excess of jurisdiction or a patent illegality or is mala fide, to call for an interference in "judicial review". It has to be borne in mind that the Constitution itself attaches finality to the orders passed by the Election Tribunals in the decision of election disputes which must be respected and should be interfered with only, as already stated above, on grounds of abuse of jurisdiction, or an arbitrary exercise of that jurisdiction or on the ground that the decision is patently against the law under which the Tribunal has acted or is required to act. These considerations, however, have to be weighed down by the opposite consideration that the Tribunals, even though of exclusive jurisdiction, are not above the law, which regulate their constitution and the exercise of their jurisdiction in the decision of the cases that come up before them for disposal according to the law laid down for the purpose. The High Court has the powers to put back the Tribunals on the Constitutional and legal rails where they are found to have committed an error of jurisdiction in the exercise of their powers or if they are found to have committed a patent illegality which is destructive of their jurisdiction. This is not to say that the High Court will exercise its powers whenever there is an error of law as for example where two interpretations are possible on the same legal provision, and the Tribunal has accepted the one which may not find favour with the High Court. The High Courts are not and should not act as Courts of appeal under Article 98 and while reviewing the decisions of the Election Tribunals, their jurisdiction is further restricted by the finality accorded to those orders by the Constitution.

6. The interruption of proceedings before an Election Tribunal, thereby impeding its progress, and making it to sit idle awaiting the verdict of the High Court on the challenge made to its order, is, in my view, plainly harmful to public interest, as it entails wastage of public time and expenditure. A notice should, therefore, normally issue to the Law Officer concerned as required by Article 98 (4) (b) of the Constitution. But it may be that in some cases or after hearing the parties and on a fuller examina tion of the case, public interest is found to lie in issuing the stay order rather than in withholding it, as for instance, where the proceedings are patently marred by lack of jurisdiction or abuse of the process of law, rendering the continuity of the proceedings a fruitless exercise.

7. To summarise our conclusions I will answer the reference thus: (i) The prayer seeking suspension of an order passed by the Election Tribunal should not be ordinarily granted, without a notice to the law officer concerned as required by Article 98(4)(6) of the Constitution and appropriately not without a notice to the opposite‑party. (ii) The stay shall be granted where it is shown (a) that the Tribunal has acted without jurisdiction; (b) that the Tribunal has not performed its duty under the law by which it was created; (c) that the Tribunal has acted against the principles of natural justice; and (d) that it has committed a patent illegality or an error apparent on the face of the record, which is destructive of its record, which is destructive of jurisdiction. (iii) A stay will not be granted merely on the grounds:‑ (a) that the Tribunal has not properly exercised its discretion ary power; and (b) that the decision of the Tribunal is vitiated by an error of law not amounting to a defect in jurisdiction. K. E. CHAUHAN, J.‑

I agree that this reference should be answered in the manner in which the position has been summed up by my learned brother Sajjad Ahmad, J., in paragraph 7 of his s judgment. For my own part, however, I want to clarify that in sub‑paragraph (i) of paragraph No. 7 where it is written that the prayer seeking suspension of an order passed by the Election Tribunal should not be ordinarily granted, without a notice to the law officer concerned, the word "ordinarily" is very significant and I would translate it to mean that though this is the course to be normally followed, in exceptional and really deserving cases, this may not be followed when the interest of justice may require the E issuance of an ad interim stay order straight away a course to be determined by the facts and circumstances of each case, rather than any rigid or inflexible rules on the subject.

2. In the judgment of my learned brother Sajjad Ahmad J., there occurs a passage in paragraph No. 5 which is to the following effect :‑ "The quick and correct composition of a Legislature for setting down to its work of legislative business without any cloud of uncertainty hanging on the head of any of its members about his competency to sit in the Legislature is undoubtedly a matter of public interest." This passage has been engaging my attention for sometime and I have been considering whether this was a correct enuncia tion of law on the subject. My research has shown me that the view expressed in this passage is quite in accord with the view, expressed by Lord Chancellor in Edward Lionel Senanayake v. Herath Mudiyanselage Navaratne (P L D 1955 P C 22). That was a case where a question as to the appealability of the orders passed by the Election Tribunal was examined by the Privy Council. While holding that Election Tribunal was not a forum with ordinary incidents of appeal to the Privy Council, Lord Chancellor expressed himself as follows; with regard to the functions which are usually performed by such Tribunals at page 28 of the Report: "Their Lordships do not desire to repeat what was said by their predecessors in the cases cited. Suffice it to say that in their Lordships' opinion the peculiar nature of the jurisdiction and the importance in the public interest of securing at an early date a final determination of the matter and the representation in Parliament of the constituency affected make it clear that it was not the intention of the Order‑in‑Council to create a tribunal with the ordinary incident of an appeal to the Crown."

3. The above passage points out that it is in public interest to secure an early and final determination of a matter pending before the Election Tribunal but as pointed out by my learned brother Sajjad Ahmad, J., in paragraph No. 6:‑ "but it may be that in some cases or after hearing the parties and on a fuller examination of the case, public interest is found to lie in issuing the stay order rather than in withholding it."

4. Even though, therefore, question of public interest does become relevant to be kept in view at the time of issuing stay order, but cases may crop up where the public interest would rather lie in issuing a stay order straight away. MUHAMMAD FAZLE GHANI KHAN, J.‑

I have read with advantage the leading judgment which is proposed to be delivered in this case by my learned brother Sajjad Ahmad, J. and I agree with his conclusions in para. 7(ii) and (iii) of his judgment in which he has laid down the principles on which the stay order may be granted by the High Court during the pendency of a petition under Article 98 of the Constitution. I also agree with the conclusions in para. 7 (i) to the extent that the prayer seeking suspension of an order passed by the Election Tribunal should not be ordinarily granted by this Court but on the question whether a notice to the law officer concerned is necessary as required by Article 98(4)(b) of the Constitution' my views are different.

2. There are no fetters on the powers of the High Court to make an interim order in exercise of its jurisdiction under Article 98(2) of the Constitution but sub‑clause (4) (b) of the same Article contains certain pre‑requisites for the making of that order. I need not reproduce the sub‑clause in my order as the same has been given in extenso in the order of my learned brother but the interpretation which I would like to place on the language of this sub‑clause is that when an application is made to the High Court for an order under para. (a) or (c) of clause (2) of Article 98 and on examination of the contents of the petition the High Court is prima facie of the view or in the words of the Constitution it has reasons to believe that the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being `harmful to public interest' no order will be made unless the prescribed law officer concerned has been given notice of the application of the interim order and the Court, after the law officer or any person authorised by him in this behalf has been given an opportunity of being heard, is satisfied that the making of an interim order would not have the effect as referred to in para. (b) of clause (4) of Article 98 of the Constitution. Even after hearing the law officer the Court cannot make an interim order if these results are likely to emerge as a result of its interim order.

3. The second part of Article 98 (4) (b) provides that if, after notice and hearing the law officer concerned, the High Court is satisfied that the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a `public work' or otherwise being `harmful to public interest' then no interim order will be made. In other words, there are only two pre‑requisites for the grant of an interim order in cases involving `public work' or otherwise being `harmful to public interest', firstly, that in such cases there should be a notice to the law officer concerned and, secondly, the Court should satisfy that the results, as enumerated in para. (b) of sub‑clause (4) of Article 98, are not likely to emerge from its stay order. If this satisfaction is not forthcoming then no interim order can be made by the High Court.

4. The second question, which arises for consideration, is what is the meaning of words `public work' and `harmful to public interest' as used in this sub‑clause of Article

98. These words have not beer, defined iii the interpretation clause of the Constitution and in my opinion they have to be given their ordinary dictionary meaning. The construction which can possibly be laid on these words is what is in contradistinction to a `private work' or `harmful to private interest' and when on prima facie examination of the petition the High Court is of the opinion that it will be only an in.3ividual whose work or interest is likely to be affected then the provisions relating to issue of notice and hearing of the law officer concerned cannot be invoked in aid of the refusal to make an interim order.

5. The functioning and formation of Court whether domestic, ordinary or special or even that of an election tribunal is intended to promote the private interest of the citizens who desire to vindicate their grievances through those forums. The continuation of proceedings in a given case or the stay of proceed ings before any Court or Tribunal of inferior jurisdiction though it may entail wastage of public time and expenditure cannot, be interpreted as `harmful to public interest' within the meaning of Article 98 (4) (b) of the Constitution. A m fitter of public and general interest will not mean that in which a particular individual of public is interested in his personal capacity and I am of the view that those cases alone could be brought within the purview of the phrase 'prejudicial to public work and harmful to public interest' in which the community as a whole has either a pecuniary interest or some interest by which their legal rights are liable to be affected.

6. Whenever interruption of proceedings takes place as a result of the interim order of the High Court under Article 98 of the Constitution it invariably involves wastage of public time and expenditure and it will not be possible to apply this interpretation to the cases coming from the Election Tribunal alone. If once it is accepted as a rule of interpretation that the interruption of proceedings is either 'prejudicial to public work' or is otherwise 'harmful to public interest' as it entail wastage of public time and expenditure it has to be applied to all those cases where the stay of proceedings of any other inferior Court or Tribunal is sought in a petition under Article 98 (2) (a) and (c) of the Constitution and no justifiable exception can be created for the cases pending before the Election Tribunal alone.

7. I am not oblivious of the second ground given by my learned brother in para. 5 of his judgment that "the quick and correct composition of a Legislature for settling down to its work of legislative business without any cloud of uncertainty hanging on the head of any of its members about his competency to sit in the Legislature is undoubtedly a matter of public interest" My learned brother K. E. Chauhan, J. has added a separate note in support of this reasoning and has cited Edward Lional Senanayake v. Herath Mudiyaselage Navaratne (PLD 1955 PC 22) where their Lordships of the Privy Council have held that in their Lordships' opinion the peculiar nature of the jurisdiction and the importance in the public interest of securing at an early date a final determination of the matter and the representation in Parliament of the consti tuency affected make it clear that it was not the intention of the Order‑in‑Council to create a tribunal with the ordinary incident of an appeal to the Crown." These observations by their Lordships of the Privy Council were made in Petition for Appeal from the decision of the Supreme Court of Ceylon rejecting the plea of the appellant that the Election Judge had no jurisdiction to hear the petition since, although the petition had been presented in accordance with the Ceylon (Parliamentary Elections) Order‑in Council, 1946, the application for leave to amend the Petition by alleging a false declaration as to election expenses had not been made within twenty‑one days of the date on which the result of the election had been published in the Government Gazette. Their Lordships in this case observed that the Election Judge as established by the Order‑in‑Council of 1946 was a Tribunal with a jurisdiction not only to determine finally the question whether the corrupt practices alleged in the petition had been committed but also to determine finally whether upon the true construction of the Order‑in‑Council it was competent in the circumstances for the petitioner to maintain his amended election petition which was not filed within 21 days of the date on which the result of the election had been published in the Gazette. In these circumstances it was observed that taking into consideration the peculiar nature of the jurisdiction it was clear that it was not the intention of the Order‑in‑Council create to a tribunal with the Ordinary incident of an appeal to the Crown. I have not been able to lay my hands on Ceylon (Parliamentary Elections) Order‑in‑Council, 1946, and, therefore, have been unable to compare those provisions with our legislation the National and Provincial Assemblies Election Act, 1964. However, my examination of the latter provisions of the law leaves no doubt in my mind that no such intention can be gathered from this legislation that it was meant to ensure the quick and correct composition of a Legislature for settling down to its work of legislative business. In our country the right to maintain an election petition has been made purely a private and personal right of the candidate to an election and the public at large has not been assigned any right or interest whatsoever in this matter. A cursory glance of the various provisions of the National and Provincial Assemblies Members Privilege Act, 1964, makes it abundantly clear that it is a candidate in an election alone who can bring and maintain an election petition. If the candidates to the election are no longer interested to dispute the election of a successful candidate the electorate or the public at large has been given no right to question the validity of the election of a returned candidate. There are provisions providing period of limitation for filing an election petition and also there is a right in the petitioner to withdraw his petition at any time during the pendency of his case before the Election Tribunal. In all such cases the right of action to sue does not survive and the various provisions of this law do not envisage a situation from which it can be inferred that the intention of the Legislature was to provide the quick and correct composition of Legislature for settling down to its work of legislative business without any cloud of uncertainty. Tee success in an election might have been procured by all sorts of foul means practiced by a returned candidate but if it is not challenged by any one of the candidates in the prescribed period of limitation or the petitioner who has questioned the legality of the election withdraws his petition or he dies during its pendency the proceedings before the Election Tribunal ipso facto come to an end. The provisions of National and Provincial Assemblies Members Privilege Act of 1964, which have been noted by my learned brother Sajjad Ahmad, J. also provide some other indicia of the intention of the Legislature that there was no desire on their part to see and ensure that the work of legislation is disposed of by those members alone on whose heads no clouds of uncertainty are hanging. The public at large has, therefore, been precluded to question the election of a returned candidate in whatsoever form it might have been contested and the saw, asst stands, has made it a purely private and personal affair.

8. I am, therefore, of the opinion that if in a given case it is found either that an Election Tribunal has failed to exercise the jurisdiction that vested in it or clearly exceeded that jurisdiction or if its order is male fide and an aggrieved party invokes the jurisdiction of Article 98 of the Constitution the grant of stay order for suspending the proceedings before the Election Tribunal would not have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being `harmful to the public interest' as to be hit by the provisions of Article 98(4)(b). In view of what I have said I am unable to subscribe to the view that the Election Tribunal should be made the only excep tion for the applicability of Article 98 (4) (b) of the Constitution and a notice to the law officer concerned should ordinarily be issued within the meaning of Article 98(4) (b). In my humble opinion if the High Court is satisfied that Election Tribunal has acted without jurisdiction and its judgment or order is covered by the formulation made by my learned brother Sajjad Ahmad, J. in para. 7(ii) of his judgment then the interim stay can be granted without notice to the law officer concerned.

9. The reference may be answered accordingly. Reference answered accordingly.